MADANLAL SHARMA Vs. SANTOSH SHARMA

JUDGEMENT

(1.) The appellant has by this appeal challenged the order of a Judge of the City Civil Court dismissing his petition filed against the respondent for a decree for divorce. The petition, being M.J. Petition No. 6636 of 1973, was filed by the appellant in the City Civil Court at Bombay on 14th of August, 1973 again the respondent alleging that the respondent was guilty of acts of cruelty which would entitle the appellant to a decree for divorce dissolving the marriage of the appellant and the respondent which had taken place on 16th of June, 1965 at Delhi.

(2.) In the ordinary course, this appeal would have been disposed of on an appreciation of the evidence. However, the Hindu Marriage Act, 1955, which governs the parties and under which the petition for divorce was filed, was substantially amended in the year 1976 and a new ground which would be the basis of a decree for divorce was added in section 13 of the said Act. From the arguments advanced by the Advocates appearing both for the appellant and the respondent before me and on the facts and circumstances of this case it became necessary to consider the proper meaning and legal effect of Clause (ia) of section 13(1) of the Hindu Marriage Act. Before I proceed to do it the facts which led to the filing of the petition must be stated. As already mentioned above, the parties were married at Delhi on 16th of June, 1965. Two years thereafter, that is in the year 1967, they came to Bombay. The appellants arrival in Bombay was necessitated by the exigencies of his employment, it is on record that the appellant is employed in the State Bank of India. Two years after their arrival in Bombay, an ownership flat was acquired at Andheri, a suburb of Bombay, by the appellant. The couple has been blessed with three children; the first child who is a daughter was born on 18th of June, 1967; and the second child, a son, was born on 18th of October, 1968. Thereafter, there was some spacing and on 3rd of August, 1972 the last child, which is a daughter, was born.

(3.) It is also in evidence that sometime in February, 1973 the appellant left the house at Andheri and thus he also left his wife and the three children in the flat at Andheri and went to reside in a separate house at Vikhroli, which is another suburb of Bombay. Before that, however, on 23rd of January, 1973 he gave a registered notice to the respondent alleging that the respondent was guilty of several acts of misconduct such as failing to attend to house hold duties, failing to look after a child and her education, behaving in an insulting and humiliating , manner particularly of using most abusive words in Punjabi language not followed by the neighbours; running from the house on the road at some times shouting and crying without any reason or provocation with a view to create an impression that the appellant was harassing and assaulting her and of neglecting to cook food or of keeping the same ready when the appellant returned from the office fully tired. The act of misconduct which is mentioned at No. 5 on page 4 of this notice (Ex. B on the record) is of making baseless and cheap allegations "against the character of my client involving even nearest relations of sister and mother as well as the maid servant and any name that came to your tongue just to use abusive and provocative language". By the said notice the Advocate for the appellant mentioned that the regular repetition of the respondents behaviour has made it impossible for the appellant to continue to stay in the house though the same belongs to him. He told the respondent that she had no right to the said premises and further that by her behaviour she had forfeited any right whatsoever to stay as the wife of the appellant in the said premises. It was further mentioned that the appellant having been sufficiently humiliated in the neighbourhood and the house itself, the appellant had decided to give up the said flat. The respondent was called upon to make her own arrangements for staying elsewhere failing which the appellant would take action for judicial separation and also to deal with the property in accordance with law. I have felt it necessary to refer to the allegations made in the notice it the outset itself because it will obviate the necessity of reverting to the contents of this notice later when the appreciation of the rival contentions is to be made. Apart from referring to the baseless and cheap allegations against the character of the appellant involving, among others, a maid servant, it has not been alleged in this notice that the respondent made any allegations of infidelity on the part of the appellant or of the appellants illicit relations with any person.